Nora Sleeth is a JD candidate at Osgoode Hall Law School.
Target Corporation’s request for an injunction against Fairweather’s Target Apparel was dismissed by Federal Court Justice Mandamin on June 23, 2011. Target Corporation had requested an interlocutory injunction that would prevent Target Apparel from “operating a retail store in association with a trade mark or trade name comprising TARGET and/a bullseye design”.
As soon as 2013, American Target Corporation plans to bring its shopping experience to Canada by opening between 100 and 150 Target stores across the country. Target’s expansion plans, however, are hampered by the existence of Canadian retailer Target Apparel. Target Apparel is a discount clothing store owned by Fairweather Ltd. It uses storefront signs and advertisements that bare obvious similarity to Target Corporation in the United States. The details of Target Corporation and Target Apparel’s dispute are summarized in my previous IPilogue post on this topic.
Justice Mandamin agreed with Target that Target Apparel generated confusion among customers and could be mistakenly associated with Target Corporation. While this is a serious issue for trial, Justice Mandamin did not find that Target Corporation would suffer irreparable harm in the absence of an injunction. The full decision can be found here.
Despite not yet having opened any retail stores in Canada, Target is well known and appreciated among Canadians. Accordingly, it was found that Target Corporation has established good will in Canada. Nevertheless, according to the decision, Target will not suffer irreparable harm without an injunction preventing Target Apparel from continuing to use its storefront signs. Although early surveys do indicate that Canadian consumers experienced some degree of confusion regarding Target Apparel’s affiliation with Target Corporation, Justice Mandamin found that this confusion would likely dissipate when Canadian shoppers become better acquainted with Target Corporation. Target stores are very different in appearance from Target Apparel and it would be difficult to confuse the two after having an actual shopping experience.
Target also submitted that its brand name and brand promise would be harmed by Target Apparel. Target Corporation attempts to promote a clean and sincere image that is contrasted sharply against Target Apparel’s inexpensive discount stores. Justice Mandamin found that there was insufficient expert evidence regarding brand personality and the result of broken brand promise. As a result, this issue was left to trial.
Finally, the balance of convenience was considered. Target Corporation does not currently operate any stores in Canada while Target Apparel is an established retailer. Thus, Target Corporation is not required to make any changes before trial and will not be prevented from opening its Canadian store on schedule. Having to change all signs and storefronts, however, would have a significant negative impact on Target Apparel.